..'

,e Chapter 70.105D RCW

HAZARDOUS WASTE CLEANUP--,MODEL TOXICS

CONTROL ACT

Sections '

70.1050.010 Declaration of policy.

70.1050.020 Definitions.

70.1050.030 Department's powers and duties.

70.1050.040 Standard of liability,

70.1050.050 Enforcement.

70.1050.060 Timing of review.

70.1050.070 Toxics control accounts.

70.1050.900 Shon title-I 989 c 2.

70.1050.905 Captions-1989 c 2.

70.1050.910 Construction-I 989 c 2.

70.1050.915 Existing agreements-1989 c 2,

70.1050.920 Effective date-1989 c 2.

70.1050.921 Severability-I 989 c 2.

RCW 70.1050.010 Declaration of policy. (1) Each

person has a fundamental and inalienable right to a

healthful environment, and each person has a responsibility to preserve and enhance that right. The beneficial

stewardship of the land, air, and waters of the state is a

solemn obligation of the present generation for the benefit of future generations.

(2) A healthful environment is now threatened by the

irresponsible use and disposal of hazardous substances.

There are hundreds of hazardous waste sites in this

state, and more will be created if current waste practices

continue. Hazardous waste sites threaten the state's water resources, including those used for public drinking

water. Many of our municipal landfills are current or

potential hazardous waste sites and present serious

threats to human health and environment. The costs of

eliminating these threats in many cases are beyond the

financial means of our local governments and ratepayers.

The main purpose of -this act is to raise sufficient funds

to clean up all hazardous waste sites and to prevent the

creation of future hazards due to improper disposal of

toxic wastes into the state's land and waters.

(3) Many farmers and small business owners who

have followed the law with respect to their uses of pesticides and other chemicals nonetheless may face devastating economic consequences because their uses have

contaminated the environment or the water supplies of

their neighbors. With a source of funds, the state may

assist these farmers and business owners. as well as those

persons who sustain damages. such as the loss of their,

drinking water supplies, as a result of the contamination.

. (4) Because it is often difficult or impossible to allocate responsibility among persons liable for hazardous

W8$tesites and because it is essential that sites be

.,~ned up well and expeditiously, each responsible perion should be liable jointly and severally. [1989 e 2 § 1

(Initiative Measure No, 97. approved November 8.

1988).] _ .

(1989 Laws)

·Rtyiser's noer. For codification of 'this act' (1989 c 21.see Codification Tables. Volume O.

RCW 70.1050.020 Definitions. (1) "Department"

means the department of ecology.

'(2) "Director" means the director of ecology or the

director's designee.

(3) "Facility" means (a) any building, structure, installation, equipment, pipe or pipeline (including any

pipe into a sewer or publicly owned treatment works),

well, pit, pond, lagoon, impoundment, ditch, landfill,

storage container, motor vehicle, rolling stock, vessel, or

aircraft, or (b) any site or area where a hazardous substance, other than a consumer product in consumer use.

has been deposited, stored, disposed of, or placed, or

otherwise come to be located.

(4) "Federal cleanup law' means the federal comprehensive environmental response, compensation, and liability act of 1980, 42 U.S.C. Sec. 9601 et seq., a.s,

amended by Public Law 99-499.

(5) "Hazardous substance" means:

(a) Any dangerous or extremely hazardous waste as

defined in RCW 70.105.010 (5) and (6), or any dangerous or extremely dangerous waste designated by rule

pursuant to chapter 70.105 RCW;

(b) Any hazardous substance as defined in RCW

70.105.010(14) or any hazardous substance as defined

by rule pursuant to chapter 70.105 RCW; ,

, (c) Any substance that, on March 1, 1989, is a hazardous substance under section 101(14) of the federal

cleanup law, 42 U.S.C. Sec. 9601(14);

(d) Petroleum or petroleum 'products; and

(e) Any substance or category of substances, including

solid waste decomposition products. determined by the

director by rule to present a threat to human health or

the environment if released intothe environment. '

The term hazardous substance does not include any of

the following when contained in an underground storage

tank from which there is not a release: Crude oil or any

fraction thereof or petroleum. if the tank is in compliance with all applicable federal. state, and local law.

, (6) "Owner or operator" means:

(a)'.Any person with any ownership interest in the facilityer who exercises any control over the facility; or .

(b) In' the case ,of an abandoned facility. any person

who had 'owned. or operated. or exercised control over

the facility any time before its abandonment;" ,:

The term does not include:" " -"f. ,,'t: '. '

(i) An"agency. of the state or unit of local government

'which acquired ownership or control involuntarily,

through bankruptcy. tax delinquency. abandonment, or

(CIL'70.105D RCW-p II
70.105D.020 Hazardous Waste Cleanup

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circumstances in which the government involuntarily acquires title. This exclusion does not apply to an agency

of the state or unit of local government which has caused

or contributed to the release or threatened release of a

hazardous substance from the facility; or

(ii) A person who, without participating in the management of a facility, holds indicia of ownership primarily to protect the person's security interest in the facility.

(7) "Person" means 'an individual, firm, corporation,

association. partnership, consortium. joint venture, commercial entity, state government agency. unit of local

government. federal government agency, or Indian tribe.

(8) "Potentially liable person" means any person

whom the department finds. based on credible evidence.

to be liable under RCW 70.1050.040. The department

shan give notice to any such person and allow an opportunity for comment before making the finding, unless an

emergency requires otherwise.

(9) "Public notice" means, at a minimum, adequate

notice mailed to all persons who have made timely request of the department and to persons residing in the

potentially affected vicinity of the proposed action;

mailed to appropriate news media; published in the

newspaper of largest circulation in the city or county of

the proposed action; and opportunity for interested persons to comment.

(10) "Release" means any intentional or unintentional

entry of any hazardous substance into the environment,

including but not limited to the abandonment or disposal

of containers of hazardous substances.

(11) "Remedy" or "remedial action" means any action or expenditure consistent with the purposes of this

chapter to identify, eliminate. or minimize any threat or

potential threat posed by hazardous substances to human health or the environment including any investigative and monitoring activities with respect to any release

or threatened release of a hazardous substance and any

health assessments or health effects studies conducted in

order to determine the risk or potential risk to human

health. [1989 c 2 § 2 (Initiative Measure No. 97. approved November 8.1988).]

RCW 70.105D.03O Department's powers and duties.

(1) The department may exercise the following powers

in addition to any other powers granted by law:

(a) Investigate. provide for investigating, or require

potentiany liable persons to investigate any releases or

threatened releases of hazardous substances. including

but not limited to inspecting, sampling. or testing to determine the nature or extent of any release or threatened

release. If there is a reasonable basis to believe that a

release or threatened release of a hazardous substance

may exist, the department's authorized employees,

agents, or contractors may enter upon any property and

. conduct investigations. The department.shan give reasonable notice before entering property. unless an emer-

.gcncy prevents such notice. The department may by

. subpoena require theattendance or testimony of wit-

",ncsscs and the production of documents or other .information~t~t the department deems necessary;

(CIa. 70.1051> RCW-p 21

(b) Conduct, provide for conducting, or require potentially liable persons to conduct remedial actions (including investigations under (a) of this subsection) to

remedy releases or threatened releases of hazardous

substances. In carrying out such powers, the department's authorized employees, agents, or contractors may

enter upon property. The department shall give reasonable notice before entering property unless an emergency

prevents such notice. In conducting. providing for, or requiring remedial action. the department shall give preference to permanent solutions to the maximum extent

practicable and shall provide for or require adequate

monitoring to ensure the effectiveness of the remedial

action;

(c) Indemnify contractors retained by the department

for carrying out investigations and remedial actions, but

not for any contractor's reckless or wilful misconduct;

(d) Carry out all state programs authorized under the

federal cleanup law and the federal resource. conservation, and recovery act, 42 U.S.C. Sec. 6901 et seq., as

amended;

(e) Classify substances as hazardous substances for

purposes of RCW 70.1050.020(5) and classify substances and products as hazardous substances for purposes of RCW ·82.2J.020( I); and

(f) Take any other actions necessary to carry out the

provisions of this chapter, including the power to adopt

rules under chapter 34.05 RCW.

(2) The department shall immediately implement all

provisions of this chapter to the maximum extent practicable, including investigative and remedial actions where

appropriate; The department, within nine months after

March I, 1989. shall adopt, and thereafter enforce, rules

under chapter 34.05 RCW to:

(a) Provide for public participation, including at least

(i) the establishment of regional citizen's advisory committees, (ii) public notice of the development of investigative plans or remedial plans for releases or threatened

releases. and (iii) concurrent public notice of all compliance orders, enforcement orders. or notices of violation;

(b) Establish a hazard ranking system for hazardous

waste sites; .

(c) Establish reasonable deadlines not to exceed

ninety days for initiating an investigation of a hazardous

waste site after the department receives information that

the site may pose a threat to human health or the environment and other reasonable deadlines for remedying

releases or threatened releases at the site; and

(d) Publish and periodically update minimum cleanup

standards for remedial actions at least as stringent as the

cleanup standards' under section 121 of the federal

cleanup law, 42 U.s.C. Sec. 9621, and at least as.stringen~/as all applicable state and federal Jaws, including

healtb-based standards under state and federal law.

(3) Before November 1st of each even-numbered

..year, the department shall develop, with public notice

and. hearing. and submit to the ways and means and appropriate standing environmental committees of the senate and house of representatives a ranked list ofprojects

and expenditures recommended for appropriation. from

(1989 laws)

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: l:Iazardous Waste qeanup . 70.105D.040

both the state and local toxies control accounts. The department shall also provide the legislature and the public

each year with an accounting of the department's activities supported by appropriations from the state toxics

control account. including a list of known hazardous

waste sites and their hazard rankings, actions taken and

planned at each site. how the department is meeting its

top two management priorities under RCW 70.105.150.

and all funds expended under this chapter.

(4) The department shall establish a scientific advisory board to render advice to the department with respect to the hazard ranking system. cleanup standards.

remedial actions. deadlines for remedial actions. monitoring. the classification of substances as hazardous substances for purposes of RCW 70.1050.020(5) and the

classification of substances or products as hazardous

substances for purposes of RCW 82.21.020( 1). The

board shall consist of five independent members to serve

staggered three-year terms. No members may be employees of the department. Members shall be reimbursed

for travel expenses as provided in RCW 43.03.050 and

43.03.060. .

(5) The department shall establish a program to identify potential hazardous waste sites and to encourage

persons to provide information about hazardous waste

sites. [1989 c 2 § 3 (Initiative Measure No. 97. approved

November 8. 1988).]

RCW 70.105D;040 Standard of liability. (l) Except

as provided in subsection (3) of this section. the follow-.

ing persons are liable with respect to a facility:

(a) The owner or operator of the facility;

(b) Any person who owned or operated the facility at

the time of disposal or release of the hazardous

substances;

(c) Any person who owned or possessed a hazardous

substance and who by contract. agreement. or otherwise

arranged for disposal or treatment of the hazardous

substance at the facility. or arranged with a transporter

for transport for disposal or treatment of the hazardous

substances at the facility, or otherwise generated hazardous wastes disposed of or .treated at the facility;

(d) Any person (i) who accepts or accepted any hazardous substance for transport to a disposal. treatment,

or other facility selected by such person from which

there is a release or a threatened release for which remedial action is required, unless such facility. at the

time of disposal or treatment, could legally receive such

substance; or (ii) who accepts a hazardous substance for

transport to such a facility and has reasonable grounds

to believe that such facility is not operated in accordance

with chapter 70.10S RCW; and

(e) Any person who both sells a hazardous substance

and is responsible for written "instructions for its use if

(i) the substance' is used according to the instructions

.and (ii) the use constitutes a release for which remedial

/ action is required at the facility.

. i (2) Each person who is liable under this section is

strictly liable, jointly and severally, for all remedial action costs.and for all natural resource damages resulting

from -die releases or threatened releases of hazardous

(1989 Laws)

substances. The attorney general. at the request of the

department. is empowered' to recover all costs and damages from persons liable therefor.

(3) The following persons are not liable under this

section:

(a) Any person who can establish that the release or

threatened release of a hazardous substance for which

the person would be otherwise responsible was caused

solely by:

(i) An act of God:

(ii) An act of war; or

(iii) An act or omission of a third party (including but

not limited to a trespasser) other than (A) an employee

or agent of the person asserting the defense. or (B) any

person whose act or omission occurs in connection with a

contractual relationship existing. directly or indirectly.

with the person asserting this defense to liability. This

defense only applies where the person asserting the defense has exercised the utmost care with respect to the

hazardous substance. the foreseeable acts or omissions of

the third party. and the foreseeable consequences of

those acts or omissions:

(b) Any person who is an owner. past owner. or purchaser of a facility and who can establish by a preponderance of the evidence that at the time the facility was

acquired by the person. the person had no knowledge or

reason to know that any hazardous substance. the release or threatened release of which has resulted in or

contributed to the need for the remedial action. was released or disposed of on. in, or at the facility. This subsection (b) is limited as follows:

(i) To establish that a person had no reason to know.

the person must have undertaken. at the time of acquisition. all appropriate inquiry into the previous ownership

and uses of the property, consistent with good commercial or customary practice in an effort to minimize liability. Any court interpreting this subsection (b) shall

take into account any specialized knowledge or experience on the part of the person. the relationship of the

purchase -price to the value of the property if uncontaminated. commonly known' or reasonably ascertainable information about the property, the obviousness of the

presence or likely presence' of contamination at the

property, and the ability to detect such Contamination by

appropriate inspection;

(ii) The defense contained in this subsection (b) is not

available to any person who had actual knowledge of the

release or threatened release of a hazardous substance

when the person owned the real property and who subsequently transferred ownership ofthe property.without

first disclosing such' knowledge to the transferee;

(iii) The defense contained in this subsection (b) is

not available to any person who, by any' act or omission.

caused or contributed to the release or threatened release of a hazardous substance at the facility;

(c) Any natural person who uses a hazardous sub-

-stance lawfully and without negligence for any personal

or domestic purpose in or near a dwelling or accessory

structure when ...that person is: (i) A.resident of the

dwelling; (ii) a person who, without compensation, assists the resident in the use of the substance; or (iii) a

ICla. 70.I05D RCW--1l 31
70.1050.040 Hazardous Waste Cleanup

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person who is employed by the resident. but who is not

an independent contractor;

(d) Any person who. for the purpose of growing food

crops. applies pesticides or fertilizers without negligence

and in accordance with all applicable laws and

regulations.

(4) There may be no settlement by the state with any

person potentialIy liable under this chapter' except in accordance with this subsection.

(a) The attorney general may agree to a settlement

with any potentially liable person only if the department

finds. after public notice and hearing. that the proposed

settlement would lead to a more expeditious cleanup of

hazardous substances in compliance with cleanup standards under RCW 70.1050.030(2)(d) and with ariy remedial orders issued by the department. Whenever

practicable and in the public interest. the attorney general may expedite such a settlement with persons whose

contribution is insignificant in amount and toxicity.

(b) A settlement agreement under this subsection

shall be entered as a consent decree issued by a court of

competent jurisdiction.

(c) A settlement agreement may contain a covenant

not to sue only of a scope commensurate with the settle- .

ment agreement in favor of any person with whom the

attorney general has settled under this section. Any covenant not to sue shall contain a' reopener clause which

requires the court to amend the covenant not to sue if

factors not known at the time of entry of the settlement

agreement are discovered and present a previously unknown threat to human health or the environment.

(d) A party who has resolved its liability to the state

under this subsection shall not be liable for claims for

contribution regarding matters addressed in the settlement. The settlement does not discharge any of the other

liable parties but it reduces the total potential liability of

the others to the state by the amount of the settlement.

(5) Nothing in this chapter affects or modifies in any

way any person's right to seek or obtain relief under

other statutes or under common law, including but not.

limited to damages for injury or loss resulting from a

release or threatened release of a: hazardous substance.

No settlement by the department or remedial action ordered by a court or the department affects any person's

right to obtain· a remedy under common law or other

statutes. [1989 c 2 § 4 (Initiative Measure No. 91, approved November 8, 1988).]

RCW 70.1050.050 Enforcement. (I) With respect

to any release. or threatened release. for which the department does not conduct or contract for conducting

remedial action and for which the department believes

remedial action is in the public interest. the director

shall issue orders requiring potentially liable persons to

provide the remedial action. Any liable person who refuses, without sufficient·cause. to comply with an order

..9f the director is liable in an action brought by the at- .tomey general for: ."". . :. . . .

Cal Up to three times the amount of any costs incurred by the state as a result of the party's refusal to

comply;and . . .

ICIL. 7o.1OSD RCW;-1' 4J

(b) A civil penalty of up to twenty-five thousand dollars for each day the party refuses to comply.

The treble damages and civil penalty under this subsection apply to all recovery actions filed on or after March

1. 1989.

(2) Any person who incurs costs complying with an

order issued under subsection (1) of this section may

petition the department for reimbursement of those

costs. If the department refuses to grant reimbursement.

the person may within thirty days thereafter file suit and

recover costs by proving that he or she was not a liable

person' under RCW 70.1050.040 and that the costs incurred were reasonable..

(3) The attorney general shall seek. by filing an action

if necessary. to recover. the amounts spent by the department for investigative and remedial actions and orders, including amounts spent prior to March 1. 1989.

(4) The attorney general may bring an action to secure such relief as is necessary to protect human health

and the environment under this chapter.

(5) (a) Any person may commence a civil action to

compel the department to perform any nondiscretionary

duty under this chapter. At least thirty days before

commencing the action. the person must give notice of

intent to sue, unless a substantial endangerment exists.

The court may award attorneys' Iees and other costs to

the prevailing party in the action.

(b) Civil actions under this section and RCW

70.1050.060 may be brought in the superior court of

Thurston county or of the county in which the release or

threatened release exists. [1989 c 2 § 5 (Initiative Measure No. 97, approved November 8, 1988).]

RCW 70.105D.06O Timing of review. The depart-"\

ment's investigative and remedial decisions under RCW )

70.105D.030 and 70.1050.050 and its decisions regarding liable persons under RCW 70.1050.020(8) and

70.1050.040 shall be.reviewable exclusively in superior

court and only at the following times: (1) In a cost recovery suit under RCW 70.1050.050(3); (2) in a suit by

the department to enforce an order or seek a civil penalty under this chapter; (3) in a suit for reimbursement

under RCW 70.1050.050(2); (4) in a suit by the department to compel investigative or remedial action; and

(5) in a citizen's suit urider RCW 70.1050.050(5). The)'

court shall uphold the department's actions unless they

were arbitrary and capricious. [1989 c 2 § 6 (Initiative

Measure No. 91, approved NovernberB, 1988).] . <,

RCW 70.1OSD.070 Toxies control accounts. (I) The

state toxlcscontrol account and the local toxies control

account are hereby Created in the state treasury.

(2YThe following moneys shall be deposited into the

state toxics control account: (a) Those revenues which

are raised by the tax imposed underRCW 82.21.030

and which arc attributable to that portion of the rate

equal to thirty-tbree one-hundredths of one percent; (b)

the costs of-remedial actions recovered under this chapter or chapter 10.105A RCW after March I. 1989; (c)

penalties collected or recovered under this chapter; and

(d) any other money appropriated or transferred to the

(1989 Laws)
.. . Hazardous Waste Cleanup 70.1050.920

account by the legislature. Moneys in the account may

be used only to carry out the purposes of this chapter.

including but not limited to the following activities:

(i) The state's responsibility for hazardous waste

planning. management. regulation. enforcement. techni-.

cal assistance. and public education required under

chapter 70.105 RCW;

(ii) The state's responsibility for solid waste planning.

management, regulation, enforcement. technical assistance, and public education required under chapter 70.95

RCW;

(iii) The hazardous waste cleanup program required

..under this chapter;

(iv) State matching funds required under the federal

cleanup law;

(v) Financial assistance for local programs in accordance with RCW 70.95.130. 70.95.140, 70.95.220. 70.95-

.230. 70.95.530. 70.105.220, 70.105.225. 70.105.235.

and 70.105.260;

(vi) State government programs for the safe reduction. recycling, or disposal of hazardous wastes from

households, small businesses. and agriculture;

(vii) Hazardous materials emergency response

training;

(viii) Water and environmental health protection and

monitoring programs;

(ix) Programs authorized under chapter 70.146 RCW;

(x) A public participation program, including regional

citizen advisory committees;

(xi) Public funding to assist potentially liable persons

to pay for the costs of remedial action in compliance

with cleanup standards under RCW 70.105D.030(2)(d)

but only when the amount and terms of such funding are

established under a settlement agreement under RCW

70.1050.040(4) and when the director has found that

the funding will achieve both (A) a substantially more

expeditious or enhanced cleanup than would otherwise

occur, and (B) the prevention or mitigation of unfair

economic hardship; and

(xii) Development and demonstration of alternative

management technologies designed to carry out the top

two hazardous waste management priorities of RCW

70.105.150.

(3) The following moneys shall be deposited into the

. local toxies control account: Those revenues which are

raised by the tax imposed under RCW 82.21.030 and

which are attributable to that portion of the rate equal

to tbirty-seven one-hundredths of one percent. Moneys

deposited in the local toxies control account shall be

used by the department for grants to local governments

for the following purposes in descending order of priority: (a) Remedial actions; (b) hazardous waste plans and

programs under RCW 70.105.220, 70.105.225, 70.105-

.235, and 70.105.260; and (c) solid waste plans and programs under RCW 70.95.130, 70.95.140, 70.95.220, and.

7~.95.230. Funds for plans and programs shall be alloeated consistent with the priorities and matching requirements established in chapters 70.105 and 70.95

RCW.

(4) Bxcept for unanticipated receipts under RCW 43-

.79.260 through 43.79.282, moneys in the state and local

(1989 Laws)

toxics control accounts may be spent only after appropriation by statute. All earnings from investment of balances in the accounts. except as provided in RCW

43.84.090. shall be credited to the accounts.

(5) One percent of the moneys deposited into the state

and local taxies control accounts shall be allocated onlv

for public participation grants to persons who may be

adversely affected by a release or threatened release of a

hazardous substance and to not-far-profit public interest organizations. The primary purpose of these grants is

to facilitate the participation by persons and organizations in the investigation and remedying of releases or

threatened releases of hazardous substances and to implement the state's solid and hazardous waste management priorities. No grant may exceed fifty thousand

dollars though it may be renewed annually. Moneys appropriated for public participation from either account

which are not expended at the close of any biennium

shall revert to the state toxics control account.

(6) No moneys deposited into either the state or local

toxics control account may be used for solid waste incinerator feasibility studies. construction. maintenance.

or operation.

(7) The department shall adopt rules for grant issuance and performance. [1989 c 2 § 7 (Initiative Measure

No. 97. approved November 8. 1988).]

RCW 70.1050.900 Short title-1989 c 2. This

act shall be known as "the model toxies control act:"

[1989 c 2 § 22 (Initiative Measure No. 97. approved

November 8, 1988).]

RCW 70.1050.905 Captions--1989 c 2. As used

in this act; captions constitute no part of the law. [1989

c 2 § 21 (Initiative Measure No. 97. approved

November 8, 1988).]

RCW 70.1050.910 Construction--1989 c 2. The

provisions of this act are to be liberally construed to effectuate the policies and purposes of this act. In the

event of conflict between the provisions of this act and

any other act, the provisions of this act shall govern.

[1989 c 2 § 19 (Initiative Measure No. 97, approved

November 8, 1988).]

RCW 70.1050.915 Existing agreements--1989 e

2. The consent orders and decrees in effect on March I.

1989. shall remain valid and binding. [1989 c 2 § 20

(Initiative Measure No. 97, approved November 8.

1988).]

RCW 70.1050.920 Effecth'e date--I989 e 2. (I)

Sections I through 24 of this act shall take effect March

I, 1989, except that the director of ecology and the director of revenue may take whatever actions may be

necessary to ensure thatsections I through 24 of this act

are implemented on their effective date.

-(2) This section does not apply and shall have no

force or effect if (a) this act is passed by the legislature

in the 1988 regular session or (b) no bill is enacted by

the legislature involving hazardous substance cleanup

(CIa. 70.1050 RCW-l' SJ
70.105D.920 Hazardous Waste Cleanup

.... .

- (along with any other subject matter) between August

15, 1987, and January 1. 1988. [1989 c 2 § 26 (Initiative

Measure No. 97, approved November 8. 1988).]

eRnlser's note: Neither condition contained in subsection (2) was

met.

RCW 70.105D.921 Severability--1989 c 2. If any

provision of this act or its application to any person or

circumstance is held invalid. the remainder of the act or

the application of the provision to other persons or circumstances is not affected. [1989 c 2 § 18 (Initiative

Measure No. 97, approved November 8, 1988).]

(Cb. 70.1050 RCW-f 6)

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(1989 Laws)

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